Criminally kinky?

It might be time to consider cleaning up your PCs, for some of you in England, Wales and Northern Ireland. Next Monday, 26 January, is the day that Provisions 63-68 of the Criminal Justice and Immigration Act 2008 come into effect – more colloquially known as the new ‘extreme porn’ laws.

The government’s produced a guide to the new legislation, “aimed at those who are interested in this type of material and who wish to consider whether they should dispose of it before the Act comes into effect”.

An image will be illegal if it hasn’t been classified by the British Board of Film Classification, and meets all three of the following tests:

1. That the image is pornographic;
2. That the image is grossly offensive, disgusting, or otherwise of an obscene character, and
3. That the image portrays in an explicit and realistic way, one of the following extreme acts:

a.       An act which threatens a person’s life;
b.       An act which results in or is likely to result in serious injury to a person’s anus, breast or genitals;
c.       An act involving sexual interference with a human corpse,
d.       A person performing an act of intercourse or oral sex with an animal (whether dead or alive),

and a reasonable person looking at the image would think that the people and animals portrayed were real.

However, the guide also highlights the vague nature of the new legislation, for example:

“Serious injury is not defined in the Act. It will be a question of fact for the magistrate or jury.”

At least there’s a defence for “those who appear in extreme pornographic images as direct participants in the act or acts portrayed” provided they can prove that “they directly participated in the act or acts portrayed in the image and that the acts did not involve the infliction of non-consensual harm on any person.” However, this defence does not extend to onlookers, including those “filming an activity if they are not also direct participants in the activity.”

My assumption is that spanking material in general is probably OK – no dictionary definition I know classes the buttocks as “genitals” – but if the scene happens to include a breast- or pussy-whipping, you might want to be careful. And since the definition of ‘life threatening’ includes ‘sexual assault involving a threat with a weapon’, hopefully none of the prison guards supervising that spanking appear to be armed…

But the law does criminalise images of other entirely-legal kinky activities that some consenting adults may enjoy in private. CAAN (the Consenting Adult Action Network) continues to protest valiantly against the legislation, and on much wider issues of relevance to the kinky readers of this blog. Their mission statement reads:

“We believe in the right of consenting adults to make their own sexual choices, in respect of what they do, see and enjoy alone or with other consenting adults, unhindered and unfettered by government.”

“We believe that it is not the business of government to intrude into the sex lives of consenting adults.”

If you’d like to show your support for their campaign, you can sign up on their website. We did; we urge you to consider doing so too.

caan

7 thoughts on “Criminally kinky?

  • 20 January, 2009 at 11:11 pm
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    Whoa whoa wait – what about breach of privacy and all that?! I took a second to actually look up the Act – it is criminal simply to “possess” such images? That would not fly in my country at all! How will it be enforced? Will there be raids or home computer searches or… (forgive my ignorance…)

    Reply
  • 21 January, 2009 at 12:19 am
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    Rayne: I am Dutch and even in Holland legislation like this will be and has been developed. Of course it aims to protect people (children, adolescents etc) in activities they do not wish or cannot see clearly. I know it’s a bore, but safety comes first I presume. I doubt anybody will come and search your pc without a reason or suspicion you are involved in a criminal offence.

    Abel: I always feel a cane is a weapon. But hey, that’s just me. Still, I wouldnot say it was used without cause 😉

    Anne

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  • 21 January, 2009 at 3:26 pm
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    I’m going to the demonstration in Parliament Square this Sunday – if any readers are in London it would be good to see you there.

    Reply
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  • 25 January, 2009 at 11:46 am
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    An interesting note from the good folks at CAAN clarifying the point about movies approved by the British Board of Film Classification. It’s a sign of the nonsensical drafting of the new law that the entire film, if passed by the BBFC, is exempt from the legislation – but individual scenes taken from such a film can still be illegal…

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  • 30 January, 2009 at 11:16 pm
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    I find it quite remarkable that the guidelines say:

    “That the image portrays in an explicit and realistic way… an act… etc.”

    That’s not what the crazily drafted legislation says at all. The criterion in the Act itself is:

    “that a reasonable person looking at the image would think that the person was real”.

    It is not at all the same thing for the _person_ to seem real as for the _act_ to appear realistic.

    Fortunately the wording is such a pig’s ear that any half-competent defence lawyer will be able to tear it to shreds. I am not really concerned that some poor owner of spanking magazines or even knife-play videos will find themselves convicted. I am _much_ more concerned about the self-censorship that is already happening, and about the damage that could be done to someone’s life between a police raid and and acquittal, or indeed the quiet dropping of charges.

    Isn’t it wonderful that the BBFC gives certificates to Saw and Hostel and denies them to consensual spanking videos?

    HH

    Reply
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